A potential alternative could help college students avoid the risk of ruining their lives for underage drinking

Feb. 16, 2014

Erik Muckey, president, and Rachelle Norberg, state and local committee chairwoman for the Student Government Association at the University of South Dakota, are proposing an alcohol diversion program for underage alcohol violations. The program would allow students to avoid an offense on their records. By Elisha Page / Argus Leader

No alcohol charges on permanent record: USD Student Government Association members talk about a proposed program to avoid alcohol charges from appearing on a minor's permanent record.

Underage drinking numbers

VERMILLION EXAMPLE: Police Chief Matt Betzen said his department has charged underage drinking 173 times in the past year. ELIGIBILITY: Betzen doesn’t know how many of those cases received multiple charges but said all 173 would be eligible for a diversionary program being developed in Vermillion unless they previously had been charged with underage drinking. REQUIREMENTS: The diversion program probably would include daily breathalyzer testing for at least 30 days and perhaps counseling. Participants who successfully complete the program would avoid prosecution and a criminal record.

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College students underage and under the influence do a lot of crazy things they regret once they’re caught. Now a coalition of University of South Dakota student leaders and law enforcement in Vermillion thinks it has a way to address that.

In the latest of numerous attempts in the state to use something other than a hammer to punish crime, the Vermillion group wants to enable first-time offenders caught using alcohol underage to avoid prosecution by opting instead for breathalyzer testing and perhaps counseling.

The details are being worked out and need the sign-off of Clay County State’s Attorney Teddi Gertsma, but she said, “I am open to seeing what they come up with and discussing it with them.”

Student leaders at South Dakota State University and other campuses are watching closely to see whether they can duplicate the program.

The effort by USD’s Student Government Association, the Vermillion police chief and Clay County sheriff is the latest in a diversionary trend in punishment seemingly sweeping the state.

In 2010, the state Council on Juvenile Services started a program called the Juvenile Detention Alternatives Initiative, which espouses home detention, electronic monitoring bracelets, evening-attendance centers and shelter care as alternatives to locking up juvenile offenders.

Legislative efforts

Last year, lawmakers passed the Public Safety Improvement Act to shift the focus of the criminal justice system away from prison time and toward alternatives — drug courts, DUI courts, reduced periods of supervision for parolees and probationers who exhibit good behaviors.

And even now in Pierre, legislators are discussing a bill that would lessen the amount of time students must serve mandatory school activity suspensions when caught using drugs — though local school districts still could impose stiffer sanctions.

Though that bill wouldn’t alter criminal consequences for students caught using, its sponsor, Senate Majority Leader Tim Rave of Baltic, still sees an attitude change when it comes to the issue of punishment.

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“There’s not been a concerted effort to do all this,” Rave, a Republican, said of these diversionary alternatives. “But it would appear there is this kind of movement to try to address these issues in a more global manner.

“I think there are people being thoughtful who are asking, ‘Are we doing the right thing?’ In some cases, probably we are. In others, it’s like, ‘Oh gosh, maybe there are things we can do that are better, being more thoughtful in going forward.’ ”

The program being looked at in Vermillion comes about after university student organizations across the state had failed the past three legislative sessions in Pierre to push through passage of a Good Samaritan Alcohol Policy. That legislation would have protected underage students from judicial actions when seeking medical help for someone with an alcohol-related sickness or injury.

Legislators saw the proposal as a free pass for individuals involved in illegal behavior. So this year, members of USD’s Student Government Association took a different tack on underage drinking, opting to pursue this diversion program as an appropriate and alternative penalty to a potential criminal record, SGA President Erik Muckey said.

Maintaining clean record

“In Vermillion, you’re in a place where a lot of the alcohol-consuming population is looking at trying to get a law degree, or a medical degree or a business degree, and so keeping their record clean is important to them,” Muckey said. “So there would be a value in this, to keep their record clean and to be able to educate them on the effects of binge drinking and to learn from their offense.”

The idea makes sense to Vermillion Police Chief Matt Betzen and Clay County Sheriff Andy Howe. Their officers don’t want young people scrambling out of house parties and fleeing into the cold night with no coat or protection from the elements. They’ve seen students who tried to escape into the darkness and hurt themselves barreling into objects they did not see.

Students run out of fear of being arrested, law enforcement officials say, or of letting down their parents or damaging their standing in the university.

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“This fear of a minor-in-possession ticket, it’s greatly exaggerated on the part of young people experiencing this fear,” Betzen said. “It is far from the end of the world. It’s the same level of crime as a speeding ticket. But there is fear there and ... kids do strange things ... for what is a relatively minor offense. Here is an opportunity to change that behavior.”

The program wouldn’t apply to young people picked up for driving under the influence, Muckey said. It wouldn’t apply to felony crimes. Nor would it be available to anyone but first-time offenders, Howe and Betzen said.

Because the laws for juveniles are different, it would only apply to underage adults ages 18 to 20, whether they are in college or not, Betzen said. “Initially, at least, we would only be looking at underage consumption,” he said. “If successful, we could look at a model for other crimes related to poor choices involving underage drinking.”

Paying a fine instead

People could simply pay what is typically a $114 fine in Vermillion and decline such a program. Howe said he has no problem with that, though he believes some who fit criterion developed for the program will want to keep the offense off their record, even though to do so might cost them more than the fine itself.

Law enforcement sees breathalyzer testing — similar to the state’s 24/7 Sobriety Program — as being key to the effort. A person required to come in twice a day for 30 days is going to pay $90 for the testing, Howe said, though it hasn’t been determined yet whether the requirement would be 30, 60, 90 or some other number of days.

There might be a counseling requirement as well, or other education-related options still being looked at, Muckey said. He imagines a person approved for the program who fails a breathalyzer or skips any of the other requirements still could face prosecution.

“We want to change behavior,” Betzen said. “A fine is negligible; it doesn’t necessarily act as a satisfactory deterrent. People who get a ticket go to court and pay their $114 fine, and it’s an inconvenience. But now if keeping it off your record means doing 30 days on a 24/7, that’s enough time to change behavior. That’s our goal.”

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He predicts maybe a dozen students a year would opt for the diversion program — at first.

Gertsma wants to know what additional financial and work burdens this puts on law enforcement and the state. Betzen doesn’t think the financial costs should be a factor because those in the 24/7 program pay testing costs. Counseling services on campus and in the community could handle that aspect, if it’s required, he said.

“We don’t have to re-create anything to do these programs,” Betzen said. “How much time it is going to take to administer it, the state’s attorney has to weigh in on that. If she is unable to get resources freed for it, the sheriff and I are still committed to doing a scaled-down version.

“We are willing to take on the work for the first year, find out what the actual numbers are and how much actual time it takes.”

Could start this spring

The program requires no legislative action, though the USD Student Government Association voted Jan. 28 to formally move forward with the idea. Before she gives her blessing, Gertsma wants to know that everyone in the program is treated fairly and equally across the board.

“That’s easily said but not always easily done because of the different facts of each case,” she said. “We want to be as consistent as we can if we do this.”

The group hopes to have its plan to Gertsma by March 18. If so, there could be time to begin instituting it yet this spring semester, Howe and Betzen said.

If it works there, other university communities in the state could follow suit. Caleb Finck of the SDSU Student Association was in Vermillion last fall to listen in on the discussion. He’s already talked to Brookings Mayor Tim Reed about a similar program in that community and hopes to visit with local law enforcement.

“We foresee this would be used primarily in the college towns,” Finck said. “It could branch out from there. I could see us test-piloting it in a few places to see how it works, and if it does, we could take it to everybody in the state.”

Dakota State University’s Student Senate voted Wednesday evening to support a diversion program in Lake County, Senate President Elliott Breukelman said. He plans to talk about it with Dakota State’s administration and to the Lake County Sheriff’s Department. The same discussion probably will happen in Aberdeen, said Kelsey Luckhurst, president of the Northern State University Student Association.

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“An educational opportunity like this is very important for our students and can really have life-changing impacts on not only the student, but the legal infrastructure in South Dakota,” Breukelman said.

At SDSU, students think their peers would welcome the option of a diversion program, especially if law enforcement or prosecutors spelled out the potential long-term consequences of a fine and a criminal record versus testing and counseling.

“I could actually see something like a program like this succeeding, especially if someone in higher authority can explain the consequences of each option before the person makes their decision,” said Kody Fossum, a 21-year-old construction management major from Fort Collins, Colo.

Nathaniel Casey, an SDSU journalism major from Nebraska, thinks most students understand that a criminal record can damage their job and educational opportunities. While most students might lean toward paying the fine, he also said an authoritative explanation of the consequences probably would swing offenders to a diversion option, if available.

“I think if it was explained to them, students would choose the diversion over the fine,” Casey said. “Plus, I think a diversion program attacks more the issue of the problem. With what they would have to go through in that program, they would learn more about how their actions affect their futures and how it affects others, rather than just paying a fine and walking away.”

Sioux Falls interest

In Sioux Falls, where there are numerous higher education institutions, Police Chief Dough Barthel said the program being discussed in Vermillion “on its surface ... sure sounds like a worthwhile one to me.”

Barthel said he understands how the mistakes of youth can come back to haunt people. If he has two applicants for an open position on the Sioux Falls force and everything is equal between them but one has an underage consumption on his record, “Gosh, we’ll probably go with the one that doesn’t have anything on their record,” he said.

Barthel does worry that in a city the size of Sioux Falls, a program with breathalyzer testing and counseling “could create a lot of work and take resources and money. There’s lot of different factors we’d have to weigh in on, and I‘d want to talk to our law enforcement partners who would be impacted by it.”

But if it made sense to those partners, to the community and to taxpayers, he could at least envision having the discussion at some point down the road.

In Vermillion, it seems to make sense to everyone, especially at a time, Howe noted again, when South Dakota seems to be finding diversionary success in alternative programs geared to drunken drivers, drug users and others

“This way, we get something that allows the opportunity for a minor or young adult, a first-time offender, to learn from their offense,” Muckey said. “And this way they get something off their record before it goes to prosecution. For some, I think that will be a big deal.”